United States v. Tavarus Cohen

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 26, 2023
• Docket: 22-12318
• Status: Unpublished

Opinion

USCA11 Case: 22-12318 Document: 33-1 Date Filed: 07/26/2023 Page: 1 of 11

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-12318 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TAVARUS COHEN,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:22-cr-20069-FAM-1 USCA11 Case: 22-12318 Document: 33-1 Date Filed: 07/26/2023 Page: 2 of 11

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Before WILSON, ROSENBAUM, and LUCK, Circuit Judges. PER CURIAM: Tavarus Cohen appeals his 63-month sentence for posses- sion of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He contends the district court gave insuf- ficient weight under 18 U.S.C. § 3553(a) to certain mitigating cir- cumstances, such as his troubled upbringing and efforts at self-im- provement, and instead focused too heavily on prior criminal con- duct, resulting in a substantively unreasonable sentence. After careful review, we affirm the district court’s sentence. I. BACKGROUND A federal grand jury returned an indictment charging Cohen with one count of possession of a firearm and ammunition as a con- victed felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Cohen pled guilty under a written plea agreement. Before Cohen’s sentencing, a probation officer prepared a presentence investiga- tion report (“PSI”). The PSI provided a description of the offense conduct, to which Cohen did not object. In summary, it asserted that Miami police officers arrived on the scene of an alleged altercation to find Cohen with multiple small, bloody lacerations on his face. When officers approached, Cohen initially tried to walk away. But he complied with officers’ instructions to stop. USCA11 Case: 22-12318 Document: 33-1 Date Filed: 07/26/2023 Page: 3 of 11

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The officers patted Cohen down for weapons. While that was happening, Cohen voluntarily indicated that he had a gun hol- stered in his waistline. When the officer checked, sure enough, the officer found and then removed a loaded Springfield Armory 9-mm handgun from Cohen’s waistband. Cohen also said he was a con- victed felon. A records check revealed that Cohen, in fact, had twenty felony convictions and had not had his right to possess a firearm restored. At this point, the officers arrested Cohen. That same day, Cohen was released on bond. But less than three weeks later, he was arrested again for possession of ammuni- tion by a convicted felon and possession of cocaine. For this conduct, the PSI assigned Cohen a base offense level of 20. But because the PSI recommended finding that Cohen ac- cepted responsibility, under U.S.S.G. § 3E1.1(a) and (b), the PSI rec- ommended a reduced offense level of 17. The PSI also attributed 17 criminal-history points to Cohen, placing him in the highest criminal-history category of VI. That criminal history included, among other things, several convictions for drug crimes, a conviction for possession of a firearm by a con- victed felon, and a conviction for attempting to bring marijuana into a prison. The PSI listed also nine prior sentences that were not counted towards Cohen’s criminal-history points, 1 as well as

1 These include convictions in 2001, 2004, and 2011 for grand theft; convictions

in 2002 for carrying a concealed firearm and unlawful possession of a firearm by a convicted felon; and convictions in 2002, 2006, and 2009 for drug-related offenses. USCA11 Case: 22-12318 Document: 33-1 Date Filed: 07/26/2023 Page: 4 of 11

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charges that either were not prosecuted or were pending. 2 In short, according to the PSI, Cohen has been arrested 45 times, convicted of 20 felonies, and sentenced to state prison twice, serving a forty- two-month sentence in 2009 for felon in possession and a 20-month sentence in 2013 for introducing contraband into a prison. With an adjusted offense level of 17 and a criminal-history category of VI, Cohen’s applicable guidelines range was 51 to 63 months’ imprisonment. The statutory maximum term of impris- onment that Cohen could have received was ten years. 18 U.S.C. § 924(a)(2). Beyond his criminal behavior, as relevant here, the PSI noted that Cohen was mainly raised by a single mother. When he was four or five years old, he was physically abused by his maternal uncle, who also lived in the house. And Cohen was five when his mother married his stepfather, who was addicted to controlled sub- stances during Cohen’s “formative years.” Cohen consumed his first alcoholic beverage at age 8, smoked marijuana for the first time at age 13, and uses marijuana daily. As far as educational skills and employment go, Cohen re- ceived his GED in 2009, completed a semester of business

2 The then-pending charges were for driving with a suspended license in 2019

and then failing to appear in March 2022, as well as the February 23, 2022, charges for possession of cocaine and unlawful possession of ammunition by a convicted felon. USCA11 Case: 22-12318 Document: 33-1 Date Filed: 07/26/2023 Page: 5 of 11

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management that year, and has owned a silk-screen printing busi- ness since 2018. At sentencing, Cohen contended that the district court should consider his personal growth given his troubled and tumul- tuous upbringing. Specifically, he asserted that his single-parent household and abuse led to his long history of substance abuse, and that his “poor choices” do not “tell the entire story.” As Cohen described it, he made attempts at self-improvement, including serv- ing as a mentor in his daughters’ lives, obtaining his GED and col- lege credits, and finding employment while he was not incarcer- ated. As to his offense conduct—(once again) being a convicted felon in possession of a firearm—Cohen maintained he carried fire- arms to protect himself, and he asked the court to consider that he took accountability at every stage of the instant offense, showing respect for the court and law enforcement. For its part, the government argued that a 63-month sen- tence was appropriate given Cohen’s criminal history. In particu- lar, the government emphasized Cohen’s repeated convictions for possession of firearms as a felon and his continued criminal activity even while incarcerated—that is, his introduction of marijuana into prison. The government also pointed out that Cohen was arrested for possession of cocaine while out on bond for the instant offense and that the PSI contained many instances of unprosecuted violent conduct. Based on these circumstances, the government argued for a sentence at the high end of the guidelines, asserting it would USCA11 Case: 22-12318 Document: 33-1 Date Filed: 07/26/2023 Page: 6 of 11

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best serve the goals of specific deterrence, protecting the public, and promoting Cohen’s respect for the law. The district court explicitly mentioned its obligation to con- sider all § 3553(a) factors and ultimately imposed a sentence of 63 months’ imprisonment, followed by 3 years of supervised release. It acknowledged Cohen’s acceptance of responsibility and indi- cated that it would impose a sentence within the guidelines. 3 But noting the repeated nature of Cohen’s offenses and that his half- sisters dealt with a similar upbringing and were able to overcome the circumstances, the court explained that to protect the public, it would not impose a sentence at the low end of the guidelines. On appeal, Cohen argues the district court’s sentence is sub- stantively unreasonable. He contends that the district court’s focus on his prior weapon-related offenses was insufficient to account for the sentence imposed. In Cohen’s view, the 63-month sentence goes beyond what is necessary to achieve the goals of deterrence, rehabilitation, and punishment. Cohen argues that he carried fire- arms for self-defense, not for the purpose of violent crimes. He urges that the district court failed to consider all the § 3553(a) fac- tors and this court should vacate his sentence and remand for re- sentencing.

3 The judge noted he believed Cohen should be punished for longer, but be-

cause of Cohen’s acceptance of responsibility, stated he would sentence Co- hen within the guidelines. USCA11 Case: 22-12318 Document: 33-1 Date Filed: 07/26/2023 Page: 7 of 11

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II. DISCUSSION We review the reasonableness of a sentence for abuse of dis- cretion. Gall v. United States, 552 U.S. 38, 41 (2007). “Substantive reasonableness involves examining the totality of the circum- stances and whether the sentence is supported by the sentencing factors outlined in § 3553(a).” United States v. Wayerski, 624 F.3d 1342, 1353 (11th Cir. 2010). The challenging party bears the burden of showing that the sentence is unreasonable in light of the entire record, the § 3553(a) factors, and the substantial deference afforded to sentencing courts. United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015). “A district court abuses its discretion and imposes a substan- tively unreasonable sentence only if it (1) fails to afford considera- tion to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) com- mits a clear error of judgment in considering the proper factors.” Id. (quotation marks omitted). It commits a clear error of judg- ment when it considers the proper factors but balances them un- reasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). But the district court is not required to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors. United States v. Kuhlman, 711 F.3d 1321, 1327 (11th Cir. 2013). Instead, it is enough that the rec- ord reflects the district court’s consideration of the § 3553(a) fac- tors. United States v. Cabezas-Montano, 949 F.3d 567, 609 (11th Cir. 2020). Thus, the failure to discuss mitigating evidence does not necessarily indicate that the district court erroneously ignored or USCA11 Case: 22-12318 Document: 33-1 Date Filed: 07/26/2023 Page: 8 of 11

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failed to consider this evidence. United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). That said, the district court must impose a sentence that is sufficient, but not greater than necessary, to comply with the pur- poses listed in § 3553(a)(2), including the need to reflect the serious- ness of the offense, promote respect for the law, provide just pun- ishment, adequately deter criminal conduct, protect the public from the defendant’s future criminal conduct, and effectively pro- vide the defendant needed training, care or treatment. See 18 U.S.C. § 3553(a)(2). In addition, the court must consider (1) the na- ture and circumstances of the offense and the history and charac- teristics of the defendant; (3) the kinds of sentences available; (4) the guideline sentencing range; (5) any pertinent policy statements; (6) the need to avoid unwarranted sentencing disparities among de- fendants with similar records who have been convicted of similar conduct; and (7) the need to provide restitution to any victims. 18 U.S.C. § 3553(a)(1), (3)-(7). We “commit[] to the sound discretion of the district court the weight to be accorded to each § 3553(a) factor.” United States v. Perkins, 787 F.3d 1329, 1342 (11th Cir. 2015). We will vacate a dis- trict court’s sentence as substantively unreasonable only “if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) fac- tors” as evidenced by a sentence “that is outside the range of rea- sonable sentences dictated by the facts of the case.” United States v. USCA11 Case: 22-12318 Document: 33-1 Date Filed: 07/26/2023 Page: 9 of 11

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Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020) (quotation marks omitted). 4 While we do not apply a presumption of reasonableness to sentences within the guideline range, we ordinarily expect such a sentence to be reasonable. United States v. Stanley, 739 F.3d 633, 656 (11th Cir. 2014). And “a sentence imposed well below the statutory maximum penalty is an indicator of a reasonable sentence.” United States v. Taylor, 997 F.3d 1348, 1355 (11th Cir. 2021). Here, the district court did not abuse its discretion, and its sentence is not substantively unreasonable. The record reflects that the court did not ignore relevant factors, did not give signifi- cant weight to an improper factor, and did not clearly err in con- sidering proper factors. See Rosales-Bruno, 789 F.3d at 1256. Instead, it examined the totality of the circumstances, and the resulting sen- tence is supported by the sentencing factors outlined in § 3553(a). See Wayerski, 624 F.3d at 1353. Although Cohen claims the district court did not give suffi- cient weight to certain factors, including his troubled childhood and rehabilitation efforts, the sentencing transcript shows the court in fact did acknowledge Cohen’s tough background. The judge noted he had read the PSI, mentioned Cohen’s childhood and drug- abuse problems, and looked favorably upon Cohen’s acceptance of

4 The district court may base its findings of fact on undisputed statements in

the PSI. United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006). “[F]ailure to object to allegations of fact in a PSI admits those facts for sentencing pur- poses.” United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006). USCA11 Case: 22-12318 Document: 33-1 Date Filed: 07/26/2023 Page: 10 of 11

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responsibility. Even if the district court didn’t explicitly mention every piece of mitigating evidence, that does not mean it errone- ously failed to consider it. Amedeo, 487 F.3d at 833. Here, the rec- ord reflects the court’s consideration of the § 3553(a) factors. See Cabezas Montano, 949 F.3d at 609. In declining Cohen’s request to impose a low-end guideline sentence, the district court noted that not only did Cohen’s siblings overcome the same circumstances, but also, the court simply elected to give more significant weight to Cohen’s repeated crimi- nal history and convictions for possession of firearms as a felon. Past criminal behavior is not an improper or irrelevant factor. Rosales-Bruno, 789 F.3d at 1256. And we defer to the district court’s reasonable assessment of the weight that should be accorded to each 3553(a) factor. Perkins, 787 F.3d at 1342. Here, the district court’s determination that Cohen’s criminal history and repeated convictions for possession of firearms as a felon outweighed Co- hen’s mitigating circumstances was not unreasonable. The 63- month sentence imposed is also within the guidelines range and well below the statutory minimum of ten years, both of which serve as indicators of a reasonable sentence. Stanley, 739 F.3d at 656; Taylor, 997 F.3d at 1355. We are left with no definite and firm conviction that the district court committed a clear error. See Gold- man, 953 F.3d at 1222. In sum, the district court did not impose a substantively un- reasonable sentence. The court considered the totality of the cir- cumstances—including Cohen’s lengthy criminal history and prior USCA11 Case: 22-12318 Document: 33-1 Date Filed: 07/26/2023 Page: 11 of 11

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gun-related offenses, properly relied on his unobjected-to conduct in the PSI, and did not commit a clear error of judgment when it weighed the § 3553(a) factors. For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED.